Grits for Breakfast

Wednesday, December 13, 2017

In the November Reasonably Suspicious podcast, my colleague Amanda Marzullo and I discussed a capital case out of Dallas - Ex Parte Flores - in which the Dallas PD used hypnosis on the primary witness, who ultimately switched her story. She at first said a long-haired white man was the perpetrator before identifying a short-haired Hispanic man (Mr. Flores) at trial.

On the podcast, we marveled that DPD had access to an on-staff hypnotist, wondering whether DPD might also consult Tarot card experts or palm readers? But Grits underestimated the level of official status that "forensic hypnosis" has achieved in Texas, by quite a bit! I'm putting these links up mostly for my own purposes, but thought Grits readers may also be interested, so here you go:

For starters, to be clear, most states (28) do not allow hypnosis-influenced testimony to be admitted into evidence at all. Of the states that do, Texas has over the years had one of the more robust programs. The Texas Court of Criminal Appeals approved the use of hypnosis in a case called Zani v. State from 1988, the year after the Texas Legislature via SB 992 ordered what was then the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE) to create an "Investigative Hypnosis certificate." (See a 2015 synopsis of their 50-hour training course, and here's the relevant section of the Occupations Code.)

Texas and 21 other states allow court testimony by witnesses who previously were hypnotized to enhance their memories, according to a study by Steven Lynn, a professor of psychology at Binghamton University in New York. The Texas Rangers have used hypnosis 66 times since 2009, according to the state Department of Public Safety. Most law enforcement agencies in Texas don’t keep statistics on hypnosis.

Further:

Investigative hypnotists in Texas must be certified by the Texas Commission on Law Enforcement. That requires taking a 50-hour course and passing an exam. Since licensing was mandated in 1987, commission records show that 858 law enforcement officers have been certified . Four officers have been certified in the past two years. In October 2013, the commission began requiring licensed investigative hypnotists to take a refresher course every two years.

Especially if done poorly, the process - basically a means of trying to induce a more focused state of mind — can plant memories or skew existing memories. It can also make witnesses or victims more certain of what they saw, even if the recollections turn out to be false. Today, hypnosis is a rare feature in police work and even rarer in the courtroom, partly because so many courts have ruled "hypnotically induced" testimony inadmissible. The process is viewed as roughly on par with another quasi-scientific investigative tool, the polygraph test.

They noted that, "Minnesota was one of the first to restrict such testimony when the state Supreme Court ruled in State v. Mack, in 1980, to bar testimony recalled for the first time under hypnosis." Here's a Candadian case from 2007 declaring post-hypnosis witness identifications inadmissible.

Over the years, scientific support for the technique has eroded significantly. These days, a 2016 academic analysis concluded, "Scientific research ... suggests, fairly overwhelmingly, that hypnosis does not reliably increase the accuracy of eyewitness recall and recognition; rather, the research shows that when effects do occur, hypnosis can produce an increase in false, distorted, or manufactured memories."

Further, said the same source: "it is not only the distortion of memory which is at issue, but also the sincerity with which people believe their distorted memories to be accurate. Because hypnotically recovered memories are remembered in such detail and with such emotion, subjects often develop and false confidence in it."

According to this academic analysis (FN 35), there are at least five DNA exonerees who were convicted after information about hypnosis-induced testimony was concealed from their juries!

A DOJ manual for US Attorneys informs practitioners, "The information obtained from a person while in a hypnotic trance cannot be assumed to be accurate."

As far as Grits can tell, this is junk science at its worst. In Zani, ironically, the CCA already understood that proponent's claims had been seriously challenged: The majority opinion observed that:

Proponents of the use of hypnosis to restore a crime victim's memory to facilitate his trial testimony, most notable of whom is Dr. Martin Reiser, a psychologist and forensic hypnotist with the Los Angeles Police Department, advocate a "videotape recorder" theory of human memory. By this theory the human mind is thought to receive and store in the subconscious every bit of data taken in by the senses. Hypnosis is regarded as a legitimate vehicle for tapping the subconscious to retrieve data recorded therein which has proven to be inaccessible to the subject's conscious memory. "The assumption, however, that a process analogous to a multichannel videotape recorder inside the head records all sensory impressions and stores them in their pristine form indefinitely is not consistent with research findings or with current theories of memory."

Today, thanks to research with fMRIs and other modern neuroscience advancements, we know conclusively that the "videotape recorder" theory is hoakum. It can't even be said to be a disputed question anymore. And that's the main basis upon which proponents rested their arguments for using hypnosis on witnesses.

It's hard to understand how "forensic hypnosis" is still a thing in 2017. Further evidence, if any were needed, that judges in general make rotten forensic gatekeepers. This is just embarrassing.

Tuesday, December 12, 2017

Grits has been neglecting this channel a bit - family obligations have kept me as busy as a one-legged man in an ass kicking contest. But here are a few odds and ends that merit readers' attention while mine is focused elsewhere:

DPS now engaging in immigration enforcement
Texas DPS is calling the Border Patrol to the scene of traffic stops to pick up suspected illegal immigrants, reported The Intercept, which tracked what happened to the families in several of these cases. This amounts to explicitly diverting state-level law enforcement resources to fulfill a federal immigration function, reducing resources available to fight crime.

Dallas pilots non-cop-led teams on mental-health calls
Dallas is launching a pilot program to send a team led by medical personnel instead of police officers to most mental health calls. "Under the pilot program, three people would be dispatched to each mental health call: a paramedic, an officer and a behavioral health professional."

Law-of-parties debate heating up
Debates over the "law of parties" are heating up as a result of the Jeff-Wood capital-murder case, with the prosecutor from the case calling for his sentence to be commuted, reported the Texas Tribune. The law-of-parties doctrine is ripe for revision: the concept stems from British common law, but Parliament abolished it in 1957, followed soon thereafter by all of Europe, India, and in 1990, Canada. American law is an outlier on this one.

Jury selection critiques
Houston law prof and Grits contributing writer Sandra Guerra Thompson has posted an older article on SSRN critiquing jury selection procedures in the context of Miller El v. Texas. Meanwhile, Brittany Deitch of Harvard Law has a new article out critiquing jury selection procedures arguing that "that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power."

Changes to Crime Victimization Survey create headaches
The feds have so radically altered the national Crime Victimization Survey that it's no longer comparable to data from the older surveys, which poses a major dilemma for researchers and criminologists who rely on this instrument. Unlike changes to the Uniform Crime Reports, though, where 70 percent of the data tables were simply eliminated by the Trump Administration, these changes have been in the works for a while and are supposed to provide better data in the long term. But in the near term, the inability to compare the results to past years surveys is a problem.

Monday, December 04, 2017

What a difference a year makes. In 2016, the Texas Court of Criminal Appeals unanimously ruled in Ex Parte Antonio Sepeda that habeas corpus writs were the "proper remedy" to compel the Texas Board of Pardons and Parole to comply with state statutes. Pero, no mas.

Now, five members of a sharply split court have decided to "disavow" that decision in Ex Parte Morris Johnson II, leaving no viable enforcement mechanism available when the parole board ignores its statutory duties.

Judge Elsa Alcala in a dissent summed up the import of this change: "Can the parole board disregard applicable statutes without any judicial oversight?," she asked rhetorically in the opening lines to her opinion before answering her own question: "After today's majority opinion, the answer to this question is 'Yes.'"

Judges Walker and Richardson filed a separate dissent suggesting a writ of mandamus was the right legal vehicle rather than a habeas corpus writ. That opinion details the argument that the Board has a clear "ministerial duty" to consider certain parole applications because of mandatory statutory procedure requirements. (Mandamus/habeas would not be appropriate, all agreed, if exercised in an area where the board has independent discretion over a decision, but four judges believed they could be obligated to comply with statutory duties.) Judge Newell dissented without giving a reason.

The majority opinion represented the views of the three members of the Government-Always-Wins faction, plus Judges Keel and Yeary to get to five. Two GAW members, Keasler and Hervey, offered a concurrence suggesting that the parole board could resolve the immediate issue itself without the court forcing it. They contended that the failure to consider the Mr. Johnson's parole application as envisioned by the statute fell within the board's discretion and did not implicate its "ministerial duties."

The details of the case were highly technical, involving a defendant with multiple concurrent and consecutive sentences and a parole board policy which delays when a second "consecutive" sentence starts for purposes of how long a "concurrent" sentence must run.

But the bigger question involved whether the parole board may be legally constrained by statutes in a way that's enforceable through the courts, or whether they are, in essence, above the law. For now, they remain above the law, at least as far as the state courts are concerned.

Friday, December 01, 2017

In the wake of recent sex-abuse allegations at the Gainesville State School, the Dallas Morning News editorial board recommended closing Texas' five remaining youth prisons. But they didn't really address what should happen with the inmates there or how the juvenile-justice system should be structured in the aftermath of youth prison closures.

For more detailed thoughts on that, check out this GFB post from several days after the story broke anticipating that recommendation and also what might lie beyond.

In that vein, yesterday, four liberal groups called for the creation of a joint House-Senate legislative committee to create a plan to close Texas' remaining youth prisons and utilizing alternatives to secure lockups including TJJD halfway houses located closer to urban areas. Grits has no problem with the policies they're suggesting but am not certain a joint-legislative committee is the way to go. For starters, that would require that Dan Patrick and Joe Straus to both assent, and presently I doubt those men could agree on what to order for breakfast. Moreover, it feels to me like it's already fairly obvious what needs to be done.

After the Texas Youth Commission sex scandals put the agency into conservatorship in 2007, the Legislature commissioned a blue-ribbon panel to recommend how to transform the system. They suggested shifting to the "Missouri model" where youth offenders are housed in smaller facilities (fewer than 48 beds) closer to urban areas where more treatment and mental health services are available. That goal has been partially achieved, but the Gainesville episode shows that youth left in those few remaining large facilities are still at risk.

All this to say, the state has a long history here and most people involved understand in broad strokes what needs to be done. State leaders just need to muster the political will, and money, to finish the job.

MORE/TEASER: This week Grits interviewed Brandi Grissom-Swicegood on the Gainesville State School scandals for the December episode of our Reasonably Suspicious podcast. We discussed similarities and differences to the TYC episode and where state leaders may go from here. As veterans of the 2007 episode, we shared the same sense of deja vu, and exasperation, that such similar problems had recurred. And we talked about how to prevent such episodes in the future instead of merely document and prosecute them after the fact. Look for an excerpt of our conversation in the main Reasonably Suspicious podcast for December, then Grits will post the full interview online soon thereafter. Brandi just left her job as Austin Bureau Chief of the Dallas Morning News to pursue a career as a professional triathlete, and this was her last story. So it was fun to get to interview her on her way out as she reflected on her career reporting on the capitol, in addition to discussing all this juvenile justice stuff. Coming soon! (And thanks for doing that, Brandi, that was a lot of fun.)

Thursday, November 30, 2017

Grits fell ill at the end of the holiday weekend, am only now really back on my feet, and find myself in a desperate need to clear my browser tabs. So, y'all get a roundup of all the stuff I don't have time to blog about right now.

Police officers indicted more often, but seldom convicted after shootings
More police officers in Texas are being charged after questionable shootings, but prosecutors who were able to convince grand juries to indict have been less successful at securing convictions at trial, reported Tasha Tsiaperas the Dallas Morning News (who has a really cool, bond-villain-type name!). In related news, Grits contributing writer Eva Ruth Moravec had a feature in the Houston Chronicle about a Freeport police officer acquitted by a Brazoria County jury for shooting his unarmed neighbor in the next apartment. It was as negligent a situation as one could imagine, so maybe civil court is still an option: The cop apparently slept with a loaded gun in his bed (and in this case, his finger on the trigger, safety off) and fired it through his headboard into the next door apartment. Attn: Texas Monthly, this is mandatory Bum Steer material.

Police unions, the media, and me
Most local media coverage of the Austin police contract has been dismissive of the push by the Austin Justice Coalition and their growing list of allies to get the city council to vote "no." This, despite opposition to the contract from hundreds of signators, more than a dozen groups, and even though, in a staunchly Democratic county, D precinct chairs unanimously voted for a resolution urging city council to kill the deal. Currently the vote is scheduled for December 14th. At the Texas Observer, Michael Barajas has a feature explaining more fully "How the expiration of Austin's police union contract could be a rare opportunity for reform." Former CLEAT mugwump and long-time police-union leader Ron DeLord, who was lead negotiator for the Austin Police Association on the contract, complained on Twitter that Barajas didn't talk to him. So I suggested DeLord do a podcast interview to air his views, and he agreed(!). I hope y'all are looking forward to that as much as I am. Mainly I want to talk to him about his books: See Grits' discussion of his latest one, and also the opening segment of our August Reasonably Suspicious podcast discussing his remarkably accurate prediction of Texas' police-pension crisis, which was a contentious legislative imbroglio this year resulting in outcomes with which no one is happy, but which brokered an uneasy, temporary truce among the parties. If the economy holds.

Evaluating police bodycams
Coupla items here: A new study found bodycams reduced use of force episodes at the Las Vegas PD while providing quality evidence that supported criminal convictions mostly of defendants, not cops. But many advocates, your correspondent included, believe the laws limiting transparency around footage reduce the accountability benefits. Supporting that claim, Nick Selby wrote on The Crime Report that, "In October of this year, the biggest-ever randomized study of body cameras showed no measurable reduction in complaints or use of force by officers in Washington, D.C." So the jury's still out on whether this will turn out to be an important accountability measure, as they were originally pitched in the hyped aftermath of the Ferguson protests.

With shortfall looming, a way to reduce DPS crime-lab volume
Plano PD is testing a device that can tell whether DNA exists on a piece of evidence before they send it to the lab instead of after. If this works as advertised, Governor Greg Abbott, his grants division, and DPS crime-lab folk should take heed. It might even be worth the Governor considering emergency grants to buy these for the biggest users of DPS DNA lab services to reduce the volume of cases. A lot of material sent has no DNA on it at all, and to screen that out up front would make a big difference on volume in a biennium when the Legislature told DPS to collect fees for part of their budget and the Governor has stopped them from doing it. That creates a shortfall unless they can find ways to reduce volume. This could be an important one.

Death penalty now mainly an LWOP plea-bargain chip
Texas will perform no more executions this year after the Court of Criminal Appeals issued a stay and halted Juan Castillo's planned trip to the death chamber. But expect life without parole sentences to keep stacking up as Christmas approaches. In 2016, according to the Texas Office of Court Administration, just three new death sentences were secured by Texas prosecutors, compared to 64 LWOP sentences. (A whopping 426 total capital cases were filed statewide last year, which was a ten percent increase from the year before, so many are called, but few are chosen.) These days, the death penalty is mostly a threat to get people to accept life without parole sentences in a plea bargain.

Harris judges sabotaging pretrial release order from feds
Harris County judges are sabotaging the pretrial release system mandated under a federal court order by refusing to release thousands of defendants who qualify, according to a report by the Texas Tribune (which doesn't use such strong language but supplies all the relevant details). Instead, the Sheriff has to release them outside of the purview of the Pretrial Services system, where they predictably have higher no-show rates. (One of the most important things pretrial services does to get them there are reminder calls and texts.) The key problem:

Defendants who are ordered for no-cost release by a judge or magistrate are entered into the county’s Pretrial Services department, which works to ensure those out on personal bonds know the date of their next court appearance and can provide additional conditions like drug testing, mental health services or GPS ankle bracelets. Those released by the sheriff aren’t monitored once they leave the jail.

On judges as gatekeepers, redux
Here's a law review article by Stephanie Damon-Moore on a question Grits has thought about a lot: "why trial judges, who have an independent obligation to screen expert testimony presented in their courts, would routinely admit evidence devoid of scientific integrity."

Beyond mass incarceration: Felony sentences rose quicker than imprisonment rates
We've established that the War on Drugs contributed more to mass incarceration than critics like John Pfaff have claimed. But now the statistician who best proved that has come out with a new analysis demonstrating even deeper, more insidious aspects to the drug war's role. Compared to new prison sentences, which themselves skyrocketed, the number of total felony sentences (including probation, deferred adjudication, etc.) went up even faster! See here, and check out the whole analysis:

Wednesday, November 29, 2017

In the wake of the new Texas Juvenile Justice Department sex scandal out of the Gainesville State School, and reports by the Dallas News of absurdly high turnover rates and abuse of inmates by staff, it occurred to me to check the service "Glass Door" to see if current or former TJJD employees had ever posted there. Indeed, they had!

Glass Door is a service for people looking for jobs. It allows current and former employees to provide input on anonymously on what it's really like to work for an employer. Mostly it's used in private sector contexts, but it turned out there was state agency information, too.

The main positives about the agency were that pay and especially benefits were good for the jurisdiction. But the various negative critiques mounted up. Here's a short compilation of some of the more negative comments made by TJJD employers about their jobs:

very dangerous environment with little to no troop support.

we should have been paid more for the crap we had to deal with

Unsafe environment to work in, Messy Cliques, No appreciation shown to the employees.

Morale is the lowest in seven years.

The stress level can often run high. The turn-over rate tends to be high so there are some issues involved with maintaining veteran, well-trained staff. These positions are not for the faint of heart or those who can be easily manipulated.

Short staffed. Mandatory overtime that you're not paid for.

The workplace has a negative culture and the state is constantly threatening to close down the facilities.

Safety is at risk.

Unsafe work environment. Management is clueless and uncaring. Employees are treated as pawns to be used for coverage. Poor attendance by coworkers is not addressed and employees often have to work 12 hour to 16 hour shifts as you cant leave unless management can find a replacement for you at the end of your shift.

This is the most racist place I have ever seen. It is full of hateful and negative teachers and administrators , which they likely keep around. Most if them call the kids trash and have no real desire to help them. Your treatment is based on how well you suck up or sleep around.

Expectations are high and those that genuinely care for the youth can find themselves doing the work of two or three.

One employee offers this disgruntled assessment:

Pros
In this company there aren't any pros, unless you are in with the "in" crowd, the morale at the company is very low and that's from management down. As a clerk, there is no room for improvement, no training. There are basically no pros for working for this agency.

Cons
A lot of work for one person, no career ladder, no room for improvement, self taught.

Tuesday, November 28, 2017

In the world of criminal-justice reform, because there are so many different participants and levels of government involved in how the system operates, reformers must keep available a full tool chest of possible approaches, selecting each one to accomplish a particular task in a given situation.

Nueces County DA Mark Gonzalez

For example, if you want to eliminate money bail, maybe litigation is the only option. OTOH, if one wants to close prisons, that must be done through the Legislature, and in particular the House Appropriations and Senate Finance Committees. Want to oppose local jail expansion? You'll need to lobby the county commissioners court. Or if one wants fewer people shot by police, the policies governing use of force are controlled by unelected administrators at local departments, with only indirect input from city managers or city councils. Each of these issues requires reformers to adopt a tailored approach if they hope to succeed; there's no one tactic which will transform the entire process.

Lately, it has become fashionable to claim that prosecutors are primarily or at least disproportionately to blame for mass incarceration, a view to which Grits only partially subscribes. But the principle champions of this critique have not developed viable visions for how prosecutors' offices might operate in the alternative. And so, the go-to move in the near term has been to run "reformer" DA candidates against incumbents, hoping a change at the top will trickle down throughout the agency.

However, using the electoral process to oust a DA is an expensive and difficult tool to employ among the array of possible options, and in many cases it may have limited practical utility. In some cases it can easily backfire. How can one tell if it's worth it?

Indeed, is it worth it at all? In a post responding to Josie Duffy Rice titled "'The Myth of the Progressive Prosecutor,'" Grits recently argued that, "Any differences between electeds play out at the margins of just a handful of individual cases. But the overarching structure and purpose of the institution inevitably remains undisturbed. Even when DAs take a progressive step, there are almost always pragmatic, internal reasons for it."

Sure, Gonzalez could simply stop taking drug cases or use his discretion more radically to reduce local jail populations and prison commitments. But to expect him to do so is to expect things he never promised during his campaign.

Which brings us to what he did campaign on, and what reformers may reasonably expect from successful electoral strategies, particularly in the South. (Caveat: The new DA in Philadelphia appears to have a more visionary agenda, and I'm interested to see how he fares and exactly what he does differently from his predecessors. But none of our "reformer" Texas DAs promised anything close to his campaign platform.)

During the election, Gonzalez touted his own background as a proud defense attorney and Mexican-American motorcycle enthusiast. In addition, the remarkable "Not Guilty" tattoo across his chest gave voters an impression he would approach the job with a different sensibility. But the job is the job, as Grits argued in response to Ms. Rice's column. As long as decisions are being made within traditional frameworks - just by different lawyers - mostly the same outcomes will be reached, with a few differences at the margins whose importance will be magnified by the media beyond their real weight.

So why would one bother with an electoral strategy if that's the best outcome that can be expected? Generally, it's because the incumbent is so zealously "tough on crime" that it clouds their judgment and perspective. That was the case with Gonzalez's predecessor Mark Skurka. It was the case with the predecessors of Craig Watkins in Dallas and Nico Lahood in San Antonio (though both of those men later turned out to present their own problems). The ouster of John Bradley in Williamson County had important ripple effects throughout the state, even though his replacement turned out to be no great shakes and lost when she ran for re-election.

Kim Ogg in Houston is the exception to the only-a-bad-prosecutor trend. Her predecessor Devon Anderson was, relatively speaking, a reformer-Republican, though not as outspoken as Ogg. Her ouster resulted primarily from a partisan sweep that also saw all the judicial races flip and Hillary Clinton carry the county.

In Dallas, the Democratic primary race between John Creuzot and Elizabeth Frizell, who are competing for the right to take on Faith Johnson in November 2018, has taken on an establishment vs. reformer tone, with Creuzot (who switched parties to keep his judgeship, then switched back when Dallas turned blue) featured as an establishment foil, and Frizell as the ostensible resistance candidate. But Frizell's pitch, like Mark Gonzalez's, at the end of the day is incredibly general:

Frizell said her experience was different that that of Creuzot, who was a judge and prosecutor when Republicans controlled Dallas County politics.

"It's hard to do that when you came up in an era when prosecutors were not reform-minded," she said, adding that she would be a better choice to deal with bail reform and community concerns over police shootings.

That's a promise to have a subtle difference in perspective on the part of the agency's top decision maker, but it's not a promise for radical, progressive reform. She says she'll be "better" on these issues, but doesn't specifically say what she'd do differently.

Which brings me to why our friends at the Fair Punishment Project are inevitably disappointed when they see the elected DAs they supported in action: They've sometimes projected more reformist heft onto these candidates than their campaign rhetoric ever justified, which really isn't the candidates' fault.

Mass incarceration is not a partisan issue and replacing an R with a D, or vice versa, doesn't change much regarding how the justice system operates.

For most of these reformer DA campaigns, and certainly for Gonzalez's, the big pitch was "I'm less of an asshole than the guy who has the job now." IMO, only when that is reason enough - i.e., when the incumbent is so much more actively harmful than is typical that simply removing them from power would improve outcomes - is an electoral strategy justified. That's because such elections can send a political message to pols about voter preferences that other politicians, like state legislators, will notice and heed.

But with less egregious cases, unless one is very clear-eyed regarding the import of potential achievements (e.g., "getting rid of Mark Skurka is a good thing," which it is), electoral strategies targeting DAs will mostly result in disappointment in terms of reducing mass incarceration.

Wednesday, November 22, 2017

Texas State Rep. Gene Wu once said to me there were three categories of professionals - attorneys, doctors, and engineers - who could do immense damage to people when they badly screw up.

He's right. Despite that, in the criminal justice realm, ineffective assistance of counsel - in essence, a defendant's legal claim that their attorney did a bad job - remains a bit of a backwater issue. That's in part because the reform community tends to be defense oriented, and in part because its true frequency is hard to document. But it's also because the government is complicit in ineffective assistance by underfunding indigent defense, so there's a bit of a wink-and-a-nod arrangement for merely lazy as opposed to actively harmful representation.

Even so, for indigent defendants with appointed counsel and few choices, shoddy defense lawyering can have a huge impact on their lives. In the November episode of Just Liberty's "Reasonably Suspicious" podcast, Amanda Marzullo of the Texas Defender Service and I discussed some of the sources of and remedies for ineffective assistance of counsel. The first segment discusses the Texas House Criminal Jurisprudence Committee's pending study of ineffective assistance as part of an "interim charge." The second segment discusses a Texas death penalty case, Ayestas v. Davis, which was recently argued at SCOTUS and which relates to resources available to death row defendants in the 5th Circuit to investigate ineffective assistance claims. Between them, the two segments highlight some obscure procedural barriers to defendants who've been victimized by ineffective assistance and potential legislative solutions. Give it a listen:

Find a transcript of our discussion below the jump. And if you've ever been represented by a good lawyer, as the holiday weekend approaches, be thankful.

Tuesday, November 21, 2017

Here's a crazy case out of Harris County: The Government-Always-Wins faction on the Texas Court of Criminal Appeals wrangled a four-member plurality on a habeas corpus writ to overturn the trial court's recommendation and uphold a conviction in which law enforcement misrepresented the weight of drugs found on a defendant, calling it 26 kilos when the real amount of actual cocaine was likely less than a gram.

The reason for the discrepancy: A police officer stole the drugs and replaced them with sheetrock powder laced with cocaine so it would trigger a field test. While the defense stipulated Mr. Pena intended to transport cocaine, we don’t really know how much because the cop stole it before they ever got to weigh it.

The case continues the CCA's longstanding penchant for finding excuses to compartmentalize severe police misconduct and uphold convictions in spite of it. The trial judge recommended the defendant be granted relief, but four members of the high court found excuses to tolerate this sordid situation.

That Mr. Pena admitted transporting cocaine is undeniable. That, in light of equally undeniable police misconduct, the state could prove he transported more than 400 grams of cocaine - which is what earned him the 15-year sentence - borders on laughable. Regardless, the GAW faction on the Court of Criminal Appeals demonstrated once again they will tolerate even the most egregious government misconduct to uphold a conviction.

In this case they only needed to convince Judge David Newell to join them for the win, though even he wasn't completely enamored of the main opinion: "[T]here is a palpable sense of injustice from allowing a conviction to stand when it is infected by such misconduct from a member of law enforcement," he opined, before doing precisely that.

Remarkably, three dissents - from Richardson, Walker, and Yeary - captured five of the nine CCA judges in opposition. But no more than three could agree on a single opposition theory they supported.

So the GAW faction prevailed over a splintered court, upholding the 15-year sentence even though, as Judge Richardson wrote, "the substance was actually less than one gram of cocaine sprinkled on top of 26,000 grams of sheetrock when Applicant was charged with possession of over 400 grams of cocaine." Their theory? The sheetrock should be considered the same as "adulterants or dillutants" used to cut cocaine and the full amount should be charged, even though a police officer planted it there!

In other words, the CCA plurality said it's fine if cops add adulterants to drugs and then charge the defendant for the larger amount. This jarring conclusion led to an excellent observation from the reader who brought this case to Grits' attention: "The courts already allow cops to lie. They don’t allow the creation of false documents. But now they are saying cops can fabricate the weight of the evidence. Who is to say all drug busts from now on won’t be subject to this weight adjustment scam?"

Just as disingenuous was their analysis regarding whether the officer tampered with evidence. Here's a headspinning quote from the main opinion showing the black-is-white, freedom-is-slavery type Orwellian reasoning they had to engage in to reach this conclusion:

there is no dispute that drug dealers returned Pena's car after placing an ice chest full of cocaine in the backseat, that Pena retook possession of the car and was the sole occupant of the vehicle when he pulled over, or that [the police officer's] misconduct took place before Pena took possession of the cocaine in his car. Based on this, Pena cannot prove that [the officer] tampered with or fabricated the drugs in Pena's car within the meaning of Section 37.09 of the Texas Penal Code.

Got that? Pena left his car and there were no drugs. Drug dealers put drugs in there, then a police officer stole them and replaced them with fake drugs laced with cocaine. But based on that, it cannot be proven that the officer "tampered with or fabricated the drugs in Pena's car." To this non-attorney observer, that's exactly what that proves!

This is yet another example of outcome-oriented judging by the Government Always Wins faction on the Court of Criminal Appeals - Keller, Hervey, and Keasler - and their occasional abettors. They tend to get away with it because no one is watching. But for those of us paying attention, some of these opinions are pretty hard to square.

Monday, November 20, 2017

Risk assessments have always been part of the justice system in some form or fashion. But until recently, there was little if any transparency surrounding them. Instead, they involved some unknown process that goes on in a prosecutor's mind, or a judge's, or a probation officer - even police officers. All of these people assess risk of re-offense and "future dangerousness" every day as part of their jobs. But who can really know on what basis?

That's why outsourcing risk assessments to external, independent, transparent instruments has been so controversial - 1) it's taking a decision making function from humans in the system who may rebel at a perception of decreased power, and 2) the fact of its transparency means a risk-assessment instrument may be criticized in a level of detail that the inner workings of a judge or probation officer's decisions could never be.

While criticisms of risk assessments have not yet scared me off their use in the pretrial detention context, they have caused me to pay closer attention to arguments from those who think they may be problematic.

Beyond critiques of racial disparities, these academic authors (Upturn's John Logan Koepke and David G. Robinson of Georgetown Law) blame risk assessments for using historical data which may not take into account concurrent reforms enacted alongside risk assessments that can mitigate the risk of pretrial failure (the most effective of which, they say, are repetitive reminder calls and texts). They also criticize agencies for basing risk assessments on data from other jurisdictions, though they note that those created for a specific jurisdiction often have much smaller datasets. So there's a tradeoff between locality and a robust dataset, the importance of which they undersell just a bit. They recommend the instruments be frequently updated using local data to the greatest extent possible (which is a theme we visited in our podcast segment).

In essence, the concern is that data-based actuarial tools are inherently backward-looking and can't capture the effects of concurrent reforms. For example, "Expanded pretrial services will reduce the risk of failure to appear," but a risk assessment based on pre-expansion data wouldn't capture that. On the other hand, if the instruments are updated and validated periodically, over time that should work itself out.

Finally, in the case of bail reform - at least in the Harris County, Texas context - the maximal harm hypothesized from risk assessments simply doesn't outweigh harms from the status quo of requiring money bail for everyone:

If a risk assessment system is developed on data from before risk mitigating reform, and misjudges a defendant’s true level of risk, such decision-making frameworks might unnecessarily burden defendants who, in reality, do not need to be jailed or to receive as much supervision upon release as the matrix suggests, in order to succeed. This observation is especially relevant given the literature on lower-risk defendants and release conditions. Multiple studies have shown that lower-risk defendants actually succeed on release more often when released without conditions, and that placing conditions of release on lower-risk defendants can actually worsen their odds of success.

Such a scenario — where defendants are systematically overestimated as riskier than they truly are, leading lower-risk defendants to be subjected to conditions of release that are counterproductive — could perversely sustain an avoidably elevated pre-trial failure rate. In the future, policymakers might look back on the move toward non-financial conditions of release as misguided, and might inaccurately conclude that, despite its ills, a money bail system is the least bad option. As we detailed above, the history of bail reform is one of unintended consequences. The risks we describe in here are not an unimaginable parade of horribles. Instead, they are plausible unintended consequences from today’s bail reforms.

That said, Grits agrees this is the greatest potential problem from implementing risk assessments. In many ways it's a bigger issue than racial disparities, or rather, it's the main reason why racial disparities are important. The impact of assessing low-risk people as medium or high can itself have a criminogenic effect and result almost in a self fulfilling prophecy. IMO that's a great argument for constantly updating and validating risk assessment instruments, but not for avoiding their use - at least in a place like Harris County where nearly all defendants, low-risk or high, would otherwise be held pretrial if they couldn't make bail.

The authors suggest adjusting risk assessment scores when the RA is based on pre-reform data:

jurisdictions that are reforming bail practices should rely on fresh and local data, gathered after their other pretrial reforms have taken root, in order either to build or to calibrate their risk assessment tools. Where prereform data is used, the tools must be numerically adjusted to take account of the helpful impact of reforms. Existing “off the shelf” risk assessment tools, whose predictions assume that defendants still face the same long odds of succeeding outside jail, should not be used without adjustment in jurisdictions where those risks have been mitigated.

In my experience that may be a hard sell. Those adjustments would become highly politicized numbers, and I'm not confident decision makers who spent millions fighting bail reform in the courts would rely on reformers' estimates to make them. Plus, if the reforms work, revisiting and adjusting the RA every couple of years, or even more often, would over time resolve the problem. But it's certainly another argument for continuous evaluation of the risk-assessment instrument.

In the podcast, where we landed was that supplementing RA information with counsel at bail hearings might mitigate disparities because a lawyer (in theory) can communicate a client's particularized circumstance to the court in a way the risk assessment cannot. In the near term, before assessments can be evaluated to take into account the effects of concurrent reforms, that may be the best guard we have against their shortcomings - known and unknown - resulting in negative, unintended consequences.

Sunday, November 19, 2017

The Texas House Corrections Committee received several "interim charges" recently, including one directing them to study:

current Texas criminal justice system policies and practices regarding 17- to 25-year-olds, specific to probation, parole, state jail confinement, and discharge from the Texas Department of Criminal Justice or county jail. Review any gaps in services that may be causing this population to recidivate. Make recommendations to improve the state's response to the needs of this population in order to lower revocation, re-arrest, and reincarceration rates.

I'd like to dig into the debate in the U.K. a little more to digest the arguments being presented on both sides. I thought this was particularly effective messaging from the above-linked article:

Alex Hewson, of the Prison Reform Trust, said: “A justice system which throws young people off a cliff edge on their 18th birthday, and expects them to fend for themselves in the adult system when they are still maturing and often vulnerable, is not one that is set up to deliver for offenders, victims or local communities.

Instinctively, based on my own life experience, what I've witnessed of young people in the justice system, as well as what I've seen of the relevant brain science (which admittedly is all second and third hand), the idea that special systems or rules might need to be created for this group to generate best outcomes doesn't seem far-fetched. I'm really glad the Lege will be studying it.

The article only quotes law enforcement personnel, no accountability advocates, researchers, or others who might have suggested needed limits on the tactic. So, since this was a topic that came up years ago when your correspondent was Police Accountability Project Director at the ACLU of Texas, allow Grits to fill that void. Offhand, here are some of the bare-minimum policies needed to make this decision acceptable from a public-safety perspective:

1. PIT should not be used for pursuits resulting from traffic violations - only when pursuing alleged felons.

2. It should require initial training and regular retraining of authorized officers, including proper locations for the maneuver.

3. Policies should require pre-approval from supervisors before the technique is used.

4. It should not be used at speeds above 35 mph.

5. Officers may not ram suspect vehicles outside of the PIT parameters.

6. Officers should be encouraged to break off chases where PIT maneuvers would endanger the public.*

7. Ban PIT's use on motorcycles.

8. Only allow officers to use the technique who have dashcams in their cars.

9. Track data and video on incidents where it's used and re-evaluate the policy after one year.

There are almost certainly other limitations that should be included in HPD's chase policy on the use of this technique (feel free to suggest some in the comments), but at a minimum these subjects should be addressed. There are good reasons the previous chief chose not to use this technique, and lots of things that can go wrong.

*E.g., "Research has shown that if the police refrain from chasing all offenders or terminate their pursuits, no significant increase in the number of suspects who flee would occur. ... For a discussion of the experiences of the Orlando, Florida, Police Department, see G. Alpert, R. Dunham, and M. Stroshine, Policing: Continuity and Change (Long Grove, IL: Waveland Press, 2006), 194-205."

Friday, November 17, 2017

In Mesquite, Texas, 31-year-old Lyndo Jones was shot by police last week. He was unarmed. His car alarm had gone off and he was sitting in his own car trying to figure out how to turn it off when police claim they thought he was an armed and dangerous criminal trying to steal a car. Turns out the alarm was broken. [Breanna Edwards / The Root]

According to a written statement from Jones’ lawyers, officers asked him to exit the vehicle. He did, and seconds later, officers shot him in the stomach. They then tried to perform an anal cavity search, an altercation ensued, and they shot Jones in the back. The police department denies these allegations, but hasn’t explained how an unarmed man in his own vehicle ended up in critical condition with multiple gunshot wounds. [Claire Cardona / Dallas Morning News]

Jones survived the gunshots, but police chained him to the hospital bed and kept him from his loved ones for a week until his family secured attorneys for him. [Melanie Schmitz / ThinkProgress] The Mesquite Police Department charged Lyndo with “evading arrest,” but the charges have since been dropped. [Tanya Eiserer / WFAA]

Statewide, the turnover rate among prison guards was 28 percent last year, but at some units it was much higher.

County-by-county numbers show that staffing challenges can be highly localized and specific, as in the Texas Panhandle. Hartley and Dallam counties are not in an area particularly known for oil and gas, but a cheese factory in Dalhart has typically pulled away would-be prison workers, Henson said.

The other two — Mitchell and Dawson counties — are in the oil-rich Permian Basin.

"Whether people will work in prisons depends on hyperlocal economic conditions," Henson said. "A prison is someplace that you work as a job of last resort."

Here's a map of the counties with the highest turnover rates among correctional officers:

State Sen. John Whitmire honed in on the fundamental problem:

"I believe in most instances we put the prisons in all the wrong places," said Sen. John Whitmire, D-Houston, chair of the Texas Senate's criminal justice committee. "Some are located in communities that don't even have housing available for the corrections officers."

Bingo! Many of Texas' prisons were located in sparsely populated areas thanks to a failed Democratic electoral strategy from the Ann Richards era. Richards sought bond funding to expand prison capacity far beyond what was necessary to accommodate federal prison reform litigation (Ruiz v. Estelle). The idea was to promote prisons as rural jobs programs in areas which were depopulating and which historically had voted Democratic. But Democrats badly miscalculated. On that same 1994 ballot, voters gave a thumbs up to the prison bonds and a thumbs-down to Ann Richards.

Meanwhile, the reasons rural areas were depopulating did not change thanks to an influx of low-waged jobs nobody wants. And so now, at many of those locations, there aren't enough warm bodies to fill the positions.

Closing units where staffing problems are most acute would make a lot of sense from TDCJ management perspective. But so far, prison units closed in Texas have been based on political considerations, sometimes including real estate interests that want to use the land for other stuff. But one can make the argument for reducing incarceration, say, of low-level drug possession offenders simply because it's becoming dangerously difficult to guard them out in the middle of nowhere in a short-staffed and under-funded setting.

Save money. Increase liberty. Make the prison system safer. What's not to like?

The prison bureaucracy is not the best judge of its own inefficiencies

With 20/20 hindsight - after Texas has reduced its prison population by nearly 10 percent and closed eight units - all of these "impossible things" turned out to be true, and they still are. Prison closures remain necessary because if we don't reduce the number of prisoners and shutter more units, costs will escalate. Both Texas' own experience and the examples of other states show #2 was correct, and #3 has always to me seemed self-evident, the Legislative Budget Board's pro-enhancement posturing notwithstanding. And the public is prepared, in my estimation, to believe #6. But numbers 4 and 5 haven't really bubbled up to the surface of public consciousness in the way one might like.

Regardless, Grits first began tracking the guard understaffing story because of its implications for decarceration and prison closures, and Ms. Blakinger's reporting shows those underlying dynamics remain strongly in play. The prison system has an interest in reducing its size and the number of people it incarcerates for its own institutional reasons, independently of advocates seeking that outcome. That creates some interesting near-term possibilities as the Legislature faces another money-strapped session in 2019. A lot there to chew on.

For more background, check out a speech from Campaign Zero's Sam Sinyangwe (audio/transcript) and his power point materials critiquing Austin's contract, from an accountability perspective, as among the worst in the country.

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